Futterman, Sirotkin And Seinfeld, LLP
Futterman, Sirotkin And Seinfeld, LLP

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Focus on Preventing Medical Errors, Not Frivolous Tort Reform

The number of people who die every year in the United States from avoidable medical errors is staggering and deeply tragic. Data from the Institute of Medicine at the National Academy of Sciences puts the figure at nearly 98,000 a year. And as large as that number is, the true figure may even be higher. A national investigation conducted by Hearst Newspapers concluded that as many as 200,000 fatalities are caused by medical errors each year.

The number of injuries is equally mind-boggling. Some estimates place it at over one million a year. But less than 1 in 10 of these injuries results in a medical malpractice lawsuit .

For years, however, corporate interests have claimed that medical malpractice lawsuits drive up the cost of care. Medical and insurance lobbies are continuing to press the government to pass the costs and burdens of those medical mistakes on to the victims and their families, leaving the victims with inadequate remedies to receive just and adequate financial compensation for their injuries and loss.

The form those proposals will take remains to be seen. Several states have imposed financial caps on certain types of recovery, such as non-economic damages. Or it could mean adding yet another layer of review panels for screening claims before they can be brought. The point is that, to a very great degree, these constant calls for reform are based on a false premise: that defending lawsuits, and practicing defensive medicine, is a leading driver in the escalating cost of healthcare.

Medical Malpractice suit s and the Cost of Care

The truth is that the cost of medical malpractice lawsuits is a surprisingly small percentage of the nation’s healthcare expenditures. A recent study in the journal Health Affairs found such lawsuits contribute only 2.4 percent of America’s healthcare spending. Other estimates, by the advocacy group Public Citizen, have placed it even lower, at less than one percent.

In other words, limiting the rights of injured patients to sue is not some sort of silver bullet that would substantially reduce healthcare costs. The focus, rather, should be on finding ways to reduce the unconscionably high numbers of preventable deaths and injuries caused by medical errors. These ways might include increased use of checklists, for example, to ensure that evidence-based best practices are being implemented in a systematic way.

Do Doctors Really Practice “Defensive Medicine”?

The notion that doctors order too many tests and perform unnecessary procedures because of the fear of lawsuits lacks supporting evidence. The assertion is sometimes made, for example, that too many c-sections are done, because of the risk of liability for birth injuries. But c-sections have increased worldwide, not only in the United States. Indeed, they have increased even in New Zealand, which has a single healthcare payer system and has completely eliminated the tort system for medical liability.

The reality is that “tort reform” has too often become a rhetorical red herring for trying to defend the indefensible: an excessive number of medical errors that cause debilitating injuries and all-too-frequent deaths. This rhetorical tactic shows an unjustified disrespect for the American jury system. All in all, that system works quite well.

Defending the Jury System

The jury system works, most often, by setting up a moment of truth, when both the defendant and the plaintiff must honestly evaluate and consider their cases. Many times that results in a settlement. When Neil Vidmar, a law professor at Duke who studies medical malpractice litigation, testified before Congress, he pointed to research showing that the driving force behind settlements is, in most instances, a recognition that the healthcare provider was indeed negligent. Negligence means a lapse in the established standard of care. And when that happens, the medical provider or its insurer should pay for the needless injuries inflicted on the victim.

Again, it is juries who focus attention on the resolution of complex cases. Empirical studies have consistently confirmed jurors’ ability to weigh the competing considerations, even when they involved complicated medical issues. A wide-ranging study by University of Missouri law professor Philip G. Peters, Jr., analyzing three decades of data, ultimately concluded that “negligence matters.” For one thing, juries agreed with expert reviewers 80 to 90 percent of the time – a better agreement rate than doctors often have with each other. Moreover, despite the worries of would-be tort reformers, weak cases rarely win.

No one will deny that medical malpractice insurance premiums have risen in recent years. But it is an unsubstantiated myth that this is because of supposedly rampant “frivolous” lawsuits. In fact, lawsuits add only a very small portion to the total of cost of care. The focus should be on reducing the medical errors that give rise to those suit s, not on restricting the victims’ right to pursue compensation for their injuries.